Hyperactive

January 31, 2000

Last week, the Supreme Court heard arguments in a constitutional challenge to the Violence Against Women Act. On the same day, the justices announced that Congress lacks the power to authorize individuals to sue states for violating the Age Discrimination Act. Both cases show that the five conservative justices have started down the road toward a full-scale confrontation with Congress that has no logical stopping point. In the process, they have turned themselves into the mirror image of the judicial activists whom they have spent their careers attacking.

After languishing in Congress during the last years of the Bush administration, the Violence Against Women Act was passed in 1994 in the wake of Nicole Brown Simpson's murder. The question before the Supreme Court is whether Congress has the power to give the victims of "gender-motivated violence" the right to sue their attackers in federal court. (State courts already guarantee this right, allowing Nicole Simpson's parents to sue O.J. Simpson for civil damages.) The Constitution authorizes Congress "to regulate Commerce ... among the several States," and Congress, after weighing its options, concluded that the commerce clause provides the most convincing constitutional basis for the Violence Against Women Act. Specifically, in the early '90s, the House and Senate heard extensive testimony that violence against women has a substantial effect on interstate commerce. Corporate managers, for example, testified that battered women were less productive workers and might be afraid to take jobs involving nighttime travel.

Although the effects of violence against women on interstate commerce are open to question, Congress's careful consideration of the issue would have been enough to persuade the deferential Supreme Court for most of the twentieth century. Between 1937 and 1995, the Court refused to strike down a single law on the grounds that Congress had exceeded its power to regulate interstate commerce, no matter how remote the interstate effects in question-- even in cases involving backyard wheat farming or racial discrimination in Southern motels. This long period of judicial restraint was defended by liberals and conservatives alike who objected to the way the Court, during the Progressive and New Deal eras, had second-guessed the political branches by stretching and extrapolating from the constitutional text. In 1995, however, for the first time in nearly 60 years, the Supreme Court struck down an act of Congress, the Gun-Free School Zones Act, holding that its effects on interstate commerce were too remote. Rejecting the argument that the mere possession of guns in school might affect children's education in a way that would harm their future productivity as adults, the Court announced that Congress can only regulate economic activities that "substantially affect" interstate commerce.

Armed with this legal test, the five conservative justices--William Rehnquist, Antonin Scalia, Clarence Thomas, Anthony Kennedy, and Sandra Day O'Connor--now seem poised to strike down the Violence Against Women Act (although O'Connor, as always, reserves the right to change her mind). Violence against women is not an economic activity or an instrumentality of commerce, the argument goes, and, even if gender-motivated violence affects the economic activities of women within a state, its effects on interstate commerce aren't substantial enough to pass constitutional muster.

But, if the Supreme Court strikes down the Violence Against Women Act on that basis, it will call into question scores of other federal laws and embolden states-rights judges on lower courts to declare war on Congress. The Endangered Species Act, for example, regulates violence against animals, many of whom don't engage in interstate travel. Will it soon be unconstitutional for Congress to prohibit shooting a puma for sport in a national park?

In a harbinger of things to come, the U.S. Court of Appeals for the Fourth Circuit has refused to enforce certain federal environmental laws, such as the Clean Water Act's protection of wetlands, in cases where the wetland has no obvious effects on interstate commerce. (A federal appeals court in Chicago was recently forced to hear testimony about how many migratory birds used a wetland and how many interstate birdwatchers they enticed.) Even more absurdly, the U.S. Court of Appeals for the Eighth Circuit recently refused to enforce a federal electricity regulation on the grounds that only states have the power to regulate electricity that doesn't cross state lines. If the courts get back in the business of policing the eighteenth-century distinction between interstate and intrastate commerce in the age of the Internet, when even the most local activities have national and international economic effects, the resulting chaos could make the New Deal crisis look quaint.

In his thoughtful concurring opinion overturning the Violence Against Women Act, Chief Judge J. Harvie Wilkinson III of the U.S. Court of Appeals for the Fourth Circuit candidly conceded that the ruling amounted to "judicial activism," the vice that most conservative judges can't bring themselves to acknowledge. But Wilkinson argued that, unlike the decisions of the 1920s and '30s, which single-mindedly favored capital over labor, the activist decisions of the current era "display no pattern of favoritism" toward a particular constituency but instead are "unfavorable to a variety of interests" in their efforts to enforce the structural principles of federalism. But this distinction isn't entirely convincing. In striking down symbolic federal laws that criminalize activities already regulated by the states--guns in schools, violence against women, age discrimination, and religious discrimination--conservative judicial activists are declaring war on the well-organized (and generally liberal) identity-politics constituencies that appeal to bipartisan majorities in Congress. The wisdom of these laws is open to question, but the wisdom of laws is not the province of the courts.

In searching for meaningful limitations on Congress's power to regulate interstate commerce, the conservative justices can at least claim to be strictly construing the constitutional text. But, in its decision holding that Congress lacks the power to authorize individuals to sue states for violating the Age Discrimination Act, the Court has abandoned any pretense of strict construction. The text of the Constitution says that states can't be sued by citizens of other states in federal court; but the conservative justices have expanded this into an amorphous and historically incoherent doctrine that the "dignity" of states prohibits them from being sued by their own citizens in federal court. In the process, the justices have also imperiously expanded their own power, holding that only the Court, rather than Congress, has the power to decide what sort of discrimination violates the Constitution.

These "sovereign immunity" decisions may ultimately provoke an even more powerful backlash against the Court than a decision striking down the Violence Against Women Act. As a result of last week's decisions, Congress now appears to lack the power to authorize individuals to sue state agencies not only for violating the Age Discrimination Act but also for violating the Americans with Disabilities Act and the Equal Pay Act and for engaging in other forms of discrimination--including certain types of sexual harassment-- that, in the Court's view, don't amount to a constitutional violation. And the economic implications could be equally disruptive. Last July, for example, the Court held that individuals can't sue state agencies or universities for patent violations. This means that if researchers at a laboratory run for profit by the University of California at Berkeley steal the patented software of their competitors in Silicon Valley, the competitors have no legal remedy.

For most of the twentieth century, conservative critics of judicial activism argued convincingly that Congress deserves deference from the courts regardless of whether the political branches make good decisions. Congress, conservatives insisted, deserves deference because there are plausible arguments on both sides of most political questions. And, in the face of uncertainty, elected officials rather than unelected judges should be given the benefit of the doubt, because if the people disagree, they can vote the politicians, but not the judges, out of office. The most startling quality of today's conservative judicial activists is not only the unself-conscious hypocrisy with which they are abandoning the judicial philosophies on which they have staked their careers. It is also their overconfidence and lack of humility--as they blithely substitute their own policy judgments for those of Congress, the president of the United States, and even the states in whose name they claim to speak.

Jeffrey Rosen is the former legal affairs editor at The New Republic and president and CEO of the National Constitution Center.